Biden DOE Proposals Would Violate Existing Law

R.P. McMurphy:  She ain’t honest.

Dr. Spivey:  Now look, Miss Ratched’s one of the finest nurses we have in this institution…

McMurphy: (laughs) She likes a rigged game; you know what I mean?

- One Flew Over the Cuckoo’s Nest (movie)

At last we have the Biden Administration’s proposed amendments to the regulations governing the adjudication of claims of on-campus sexual misconduct.  Robby Soave at Reason and the excellent Emily Yoffe writing at Common Sense (Bari Weiss’ Substack page) do a fine job of educating readers about the contents and import of the proposed changes.  But there’s more to say.

First, a bit of background.

In 2011, the Obama Administration’s Department of Education peremptorily issued a letter of “guidance” that dramatically altered the procedural requirements for colleges when adjudicating cases of alleged sexual impropriety.  The plain import of that “guidance” was that whatever protections existed for accused students must be either done away with entirely or sharply restricted.

Institutions of higher learning receiving federal funds duly complied and soon a flood of lawsuits by accused students followed.  To date, over 600 have been filed and over 200 have found serious flaws in the way those allegations were handled, resulting in civil liability and monetary damages against the schools.

The Trump Administration followed a more democratic route - the required rulemaking process - when it altered the regulations to reverse much of Obama’s “guidance.”  That brought to the proceedings a much greater measure of fairness and due process that in turn enraged the progressive Left.  As night follows day, the Biden Administration’s new proposals seek to mollify progressives by undoing the improvements made by the Trump DOE.

Like the Obama DOE, Biden’s “likes a rigged game.”  Obama’s “guidance” did, and Biden’s proposed regulations would, create a process specifically rigged to help ensure that accused students are found “responsible” for whatever charges are made.  Consider what’s being proposed:

  • A return to the Obama era’s inquisitorial process in which a single person acts as fact-finder, prosecutor and judge.
  • An accused student would have no right to see the evidence against him. The Inquisitor can deliver to the accused a “summary” of the accusations either orally or in writing.
  • The accused student has no right to confront or cross-examine his accuser.
  • The accused student has no right to an attorney.
  • The accused student has no right to a hearing. If institutions choose, the Inquisitor can simply interview parties and witnesses in private.
  • Third parties can bring accusations even if the putative victim chooses not to. Therefore, anyone who alleges having knowledge of sexual impropriety can make an accusation that the college or university is required to pursue.

The point of all this is clear: to empower students and institutions to destroy the academic careers of other students, almost all of whom will be men, often based on little-to-no evidence of wrongdoing and adjudicated in a mostly secret star-chamber proceeding whose result is all but preordained. 

That’s all bad enough, but here’s my question:  Why? 

Oh, I’m well aware of the progressive Left’s animus against men, particularly white ones, and their decades-old drive to make college as uncomfortable a place for them as possible.  But, as is so often the case when the Left manages to institutionalize its ideology, the law stands in the way.  And it does now, a fact that’s surely known to the Biden DOE.

Public colleges and universities must provide to their students due process of law when bringing charges against them.  That’s not the same due process afforded defendants in criminal cases, but it’s substantial and the current proposed amendments don’t even get close. 

Private schools have considerably more leeway, but are not free to do as they please.  Generally, they have a contractual obligation to comply with the terms and conditions spelled out in student handbooks and like materials.  More importantly, their procedures must provide fundamental fairness to all parties, including those accused.

More importantly still, most of the procedures outlined by DOE Secretary Cardona have already been found by federal judges to be fundamentally unfair.  As but one example, see Doe vs. Brandeis where the trial court said this: 

John was charged with serious offenses that carry the potential for substantial public condemnation and disgrace. He was required to defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense. He was ultimately found “responsible,” and received a penalty that may permanently scar his life and career. Under the circumstances, the complaint plausibly alleges that the procedures employed by Brandeis did not provide him with the “basic fairness” to which he was entitled.

The proposed rules would seriously damage accused students and force civil liability on schools.

Which brings us back to the question “why?”  Why would the DOE require colleges and universities to utilize policies known to result in lawsuits, civil liability and damages?  Has leftist ideology so blinded them to reality?  Do they so loathe masculine sexuality that they consider the damage inflicted on schools a price worth paying? 

Whatever one’s take on the handling of allegations of sexual impropriety on campus, the Biden’ Administration’s proposals look very much like a lose-lose proposition for schools and the students who rely on them to provide both safety and fairness.

The DOE wants a rigged game, but the deck is stacked against the proposed rules.  Don’t they know?




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